HIS HONOUR: By its amended notice of motion filed on 2 November 2020, the State of Queensland moves the Court for an order that these proceedings be transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. An unopposed oral application to amend the reference to s 5(2)(b)(ii) to s 5(2)(b)(iii) was made at the commencement of the hearing of the motion.
Section 5(2) of the Act provides as relevantly follows:
(2) Where:
(a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Supreme Court (in this subsection referred to as the "first court"), and
(b) it appears to the first court that:
…
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,
the first court shall transfer the relevant proceeding to that other Supreme Court.
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Nature of the proceedings
Heath Rowe was born in 1972. Shortly before his 13th birthday in 1985, he was admitted into the care of the Director of the Department of Children's Services in Queensland, an entity that was controlled and operated by that State. He was sexually assaulted by Ian Fehlhaber between June and September that year in Yeppoon whilst he was residing at the BoysTown care facility at Beaudesert. Mr Fehlhaber was subsequently charged with a series of unlawful and indecent assaults and carnal knowledge. He pleaded guilty in April 1987 and was sentenced to terms of imprisonment.
By his amended statement of claim filed on 26 August 2020, Mr Rowe contends that during 1985, two child care officers employed by the department would regularly attend upon him "to ensure his wellbeing and to ensure he was being cared for and protected". He alleges that on one such occasion in 1985 he told both women that he was being sexually abused by Mr Fehlhaber and that he was told that "he should not make up lies about adults". Mr Rowe alleges further that by at least 12 August 1985, the women were aware that he was engaging in inappropriate sexual behaviour at school and that by reason of what he had told the women they ought to have known or suspected that he was being sexually abused.
Mr Rowe contends that the State is vicariously liable for the acts and omissions of the women. Despite the obligation to file a defence in accordance with the rules of court, the State had failed to do so by the time I heard this application. I formed the view that the disposition of the present application would be reliably informed by the terms of any defence upon which the State proposed to rely. In accordance with a direction that I then made, the State filed its defence to the statement of claim on 19 February 2021. Reference to the terms of that defence is made later in these reasons.
The State contends that it is in the interests of justice to transfer the proceedings to the Supreme Court of Queensland when regard is had to matters such as:
1. The tortious conduct that gives rise to the allegations was committed there.
2. At least one witness who the State might call is located there.
3. Mr Rowe lives in New South Wales but on the border between the two states. The State of Queensland as a legal entity is by definition physically located there.
4. The law governing "the relevant transaction" should be the law of Queensland, especially if the matter involves the construction of Queensland legislation.
5. The procedures to be adopted in Queensland may be different to those in New South Wales.
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Consideration
Eileen Bauer and Cathy Jerks are the women to whom Mr Rowe says he complained. Ms Bauer is 72 and lives in Harristown, a suburb of Toowoomba in Queensland. Ms Bauer has said that she recalls Mr Rowe. She is currently recovering from a motor vehicle accident in 2020. Her preference is that she should give evidence in Brisbane.
Ms Jerks, now Smith, is 60 and resides in Sherwood, a suburb of Brisbane. She has no recollection of Mr Rowe. It is therefore presumably likely, if not certain, that she will not figure in the proceedings at all.
Mr Rowe now resides in Mungindi, a town that straddles the Barwon River which forms the border between New South Wales and Queensland. Mr Rowe has sought medical treatment in St George, which is in Queensland.
The State maintains that the subject matter of the proceedings has no relevant connection to New South Wales. However, Mr Rowe contends that his solicitor and Dr Adams, a treating doctor, are geographically and logistically located more conveniently to Sydney.
Importantly, on 23 October 2020, Stephen Mainstone affirmed an affidavit in which he deposed to a concern that as a single practitioner he does not and would not have sufficient resources to continue to act for Mr Rowe if the proceedings were transferred to Queensland. It is Mr Rowe's desire that Mr Mainstone should continue to act for him in the particular circumstances of this case and that he does not wish to instruct alternative legal professionals.
The State submitted uncontroversially that this application is concerned with considerations of fairness and convenience in choosing the more appropriate forum in which to conduct the proceedings. Those considerations do not generally include the convenience of the legal representatives of a party. In circumstances where the events occurred in Queensland, where the defendant is "located", and where what has been referred to as a key witness for the defence who is in advanced years with a stated preference to give evidence in Brisbane now resides, the State submitted that the balance of convenience favoured a transfer to Queensland.
The authorities make it clear that the question of the appropriate forum should not be approached with any presumption as to where the interests of justice lie. Mr Rowe's choice of forum is a neutral consideration. The State nevertheless has a persuasive onus to satisfy me where the interests of justice lie.
Paragraphs 91 to 99 of the amended statement of claim are in these terms:
"91. During 1985 Bauer and/or Jerks would regularly attend upon HR, purportedly to ensure his wellbeing and ensure he was being cared for and protected.
92. On one of these occasions, probably in or about June or July of 1985, HR informed both Bauer and Jerks that he was being sexually abused by Fehlhaber.
93. After being told this by HR, Bauer replied by telling HR that he should not make up lies about adults, and otherwise took no steps in relation to the complaint he had made.
94. Further, by at least 12 August 1985, Bauer and Jerks were aware that HR was engaging in inappropriate sexual behaviour whilst at school.
95. By reason of what HR had told them and their knowledge of HR engaging in inappropriate sexual behaviour whilst at school, Bauer and Jerks reasonably ought to have known or suspected that he was being sexually abused. Despite the foresaid, no-one took any steps in relation to the ongoing care and protection of HR, and specifically as to whether he had or may have been the subject of abuse.
96. Children's Services owed HR a non-delegable duty of care to take all reasonable steps to ensure his safety and well-being arising out of his admission into the care and protection of the director of Children's Services.
97. There was a foreseeable and not insignificant risk of harm to HR should Children's Services fail properly to care for, supervise, monitor and protect him.
98. By reason of Children's Services negligence, HR has suffered and continues to suffer injury, loss and damage, such particulars to be provided in the Statement of Particulars.
99. Further by reason of the powers, duties and responsibilities vested in the director by the Act, Children's Services owed HR a statutory duty in and about their discharge including a statutory duty to utilise the powers and resources of Children's Services so as to further the best interests of HR."
The State does not admit paragraph 91 of the amended statement of claim. It denies paragraphs 92, 93, 94 and 95. It admits paragraphs 97 and 99 but denies negligence as alleged in paragraph 98. In answer to paragraph 96, the State does not admit the duty pleaded, admits it owed Mr Rowe a non-delegable duty of care to avoid the risk of foreseeable harm but denies that the duty it owed extended to a duty to protect Mr Rowe against the intentional criminal conduct of Mr Fehlhaber in the absence of fault on its part or on the part of its employees.
It seems clear enough from the issues joined between the parties that the question of the State's liability will turn significantly upon the determination of the factual question of whether or not the State knew or ought to have known that Mr Rowe was being abused while in its care. The determination of that issue will itself depend significantly upon resolution of the looming factual contest between Mr Rowe's assertion that he informed Ms Bauer and Ms Jerks that he was being sexually abused by Mr Fehlhaber, and their anticipated denial that he did so. In that last respect I note that there is a tension between paragraph 92, which suggests that both Ms Bauer and Ms Jerks will deny that Mr Rowe told them that he was being sexually abused, and the indication given to me by counsel for the State that Ms Jerks did not remember Mr Rowe at all.
I am not satisfied that the interests of justice favour the present application. Having regard to the experience of this Court since early 2020 in the conduct of litigation by video link or other remote connection, it can no longer be accepted without question that, with the possible exception of a criminal trial before a jury, evidence given from a screen is any less forceful or reliable than evidence given from a chair in the courtroom. If the State's witnesses wish to give evidence from Brisbane, there can be no issue that they should be entitled do so. Certainly Mr Rowe has taken no objection to that proposal. Similarly, it seems to me that doctors who examine Mr Rowe can give evidence in the same way, if they give evidence at all. Mr Ryan of counsel has been retained to conduct the present application and did a splendid job by my estimation, unhindered in any discernible respect by the several geographical factors upon which he placed emphasis.
Nor am I satisfied that anything pleaded by way of defence by the State highlights or even suggests that there is an important connection with the State of Queensland that reliably indicates that the proceedings should be transferred. The State has not pointed to some significant procedural or substantive difference that convincingly points in the direction of the lex loci delicti.
Litigation of the present kind necessarily deals with a subject matter that is distressing and sensitive, and the conduct of the litigation usually requires the development and maintenance of a close relationship between plaintiffs such as Mr Rowe and their legal advisers. The uncontested prospect that Mr Rowe would be required to retain alternative representation if the matter were transferred north satisfies me, having regard to all of the circumstances of the case, that the interests of justice require that the proceedings should remain in this Court.
Accordingly, I consider that the defendant's notice of motion should be dismissed with costs.
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Decision last updated: 23 February 2021